Justices to Decide Whether County Retiree Entitled to Interest
on Retroactive Benefits

By a MetNews
Staff Writer

The California
Supreme Court has agreed to decide whether a county retiree granted retroactive
disability benefits is also entitled to interest from the date from which
benefits are awarded.

The justices, at
their weekly conference in San Francisco Wednesday, voted unanimously to grant
review in Flethezv. San Bernardino County Employees
Retirement Association (2015) 236 Cal. App. 4th 65.

A San Bernardino
Superior Court judge ruled that the plaintiff, Frank Flethez, was entitled to
disability benefits and interest retroactive to the date of his 2000
retirement. Flethez, a former equipment operator, suffered a back injury in
1998 and underwent three surgeries and years of therapy after leaving his job.

The county
retirement board did not appeal the ruling on retroactive benefits, but argued
that it should only have to pay interest from the date of the administrative
hearing on Flethez’s application. The application was filed in 2008 and the
hearing was held in 2011.

The retroactive
interest awarded by the court came to more than $130,000.

Div. One of the
Fourth District Court of Appeal agreed with the retirement system, known as
SBCERA, that the right to benefits did not vest before the hearing, and thus
interest from an earlier date is not recoverable under Civil Code §3287(a).

The statute
reads:

“A person who is
entitled to recover damages certain, or capable of being made certain by
calculation, and the right to recover which is vested in the person upon a
particular day, is entitled also to recover interest thereon from that day,
except when the debtor is prevented by law, or by the act of the creditor from
paying the debt. . . .”

The First
District’s Div. Three held in that case that California law permits an award of
damages for negligent infliction of emotional distress to family members who
watched a patient choke to death while waiting for her doctor to arrive after
surgery.

Div. Three
yesterday certified for publication its Feb. 23 opinion affirming a judgment in
favor of. The panel held, 2-1, that Phyllis Keys and Erma Smith, the daughter
and sister, respectively, of Madeline Knox—who were awarded $375,000 in damages
against Berkeley’s Alta Bates Summit Medical Center—satisfied the standard for
bystander liability under Thing v. La Chusa (1989) 48 Cal.3d 644 and
similar cases.

Thing holds that a
witness to a tort may recover emotional distress damages if present at the
scene and aware of the injury-producing event and its cause, and if a close
relative of the victim who suffers emotional distress beyond that which a
disinterested observer would be expected to experience.

Knox underwent
thyroid surgery in September 2008 and was taken to a medical-surgical unit at
Alta Bates. Once there, the plaintiffs said, the hospital appeared to lack a
sense of urgency after a nurse noticed Knox’s breathing was “noisy,” indicating
a possible obstruction in her upper airway.

According to
testimony, the rapid assessment team, composed of a respiratory therapist and a
nurse from the intensive care unit, were called in about 15 minutes before the
surgeon arrived. The surgeon then suctioned Knox’s mouth and nose, and as the
surgeon was trying to relieve pressure by removing the sutures on her incision,
Knox stopped breathing.

Knox suffered a
permanent brain injury as a result of her blocked airway and was transferred to
the ICU. She died nine days later, after life support was withdrawn.

Justice Peter
Siggins, writing for the Court of Appeal, said the Thing standard was
satisfied because Smith and Keys “observed Knox’s acute respiratory distress
and were aware that defendants’ inadequate response caused her death.”